THE TRIAL OF THE GPU SEVEN: A DISGRACE TO DEMOCRACY.
KAYJATTA.
Introduction:
The seven, now six, journalists being tried in the Gambia for sedition and defamation is a clear affront on free speech and democracy.
The greatest defamation to the president and the government of the Gambia is the trial of these journalists, and not any statements that may have been printed and published by the Gambia Press Union (GPU), Foroyaa or The Point.
While it is saddening to see this trial unfold, it is important to understand that someone has to stand up to the government and the bad laws it shoves down the throat of Gambians. I think it was Hendry David Thoreau who said that “non-cooperation with evil is as much a moral obligation as cooperation with good”. So the GPU, the Gambia Bar Association, student organizations, other civil organizations, and the general population must strongly advocate (and be willing to go to jail) for unfettered free speech and democracy in the Gambia.
This paper examines the historical evolution of sedition and defamation laws in the United States particularly, the general trend towards the abolition of sedition and defamation laws (against the president and the government). Some of the important landmark cases of sedition and defamation of the president and the government will also be looked at.
Sedition and defamation:
Sedition, in its modern usage, is a common law offense of “stirring up resistance” to lawful authority such as a government or the president. It is an expressed conduct, in the form of speech or organization that calls for public disorder and or discontent against the government or the president.
Defamation, however, is the communication of a statement to a third party that claims, either expressed or implied, to be factual, and hurts an individual, government, nation or other entity’s positive image. Defamation may be slander (spoken statements) or libel (written statements)
Sedition and defamation laws have been traced back to the 16th century in Elizabethan England of Shakespeare’s time. They have often been used against intellectuals.
Sedition and defamation in the United States:
In the United States, there have been several instances when the federal government tried to regulate speech, using sedition laws, dating as far back as the late 18th century (1798). The “Smith Act”, enacted in 1940, is the current statute that governs seditious and defamatory speech. However, the Supreme Court has moved further and further away from the strict application of this law towards an interpretation that favors free speech. Since the end of the 1960s, no serious case has been brought before the Supreme Court concerning sedition and defamation of the government and the president.
The ‘Smith Act” has been largely used against communists, Nazis, and Pacifists, who tried to interfere with military recruitment during wartime…. Even Albert Einstein was once investigated in the United States for his opposition to war.
The Supreme Court, since the 60s largely abandoned the use of sedition laws to prosecute dissidents, and has over the years tended to favor free speech over censorship.
The general trend around the democratic world also is this shift away from government’s use of sedition and defamation laws to prosecute dissidents. However, the recent upsurge of terrorism has resulted in some countries back-tracking in this respect.
It is important to mention that the Gambia is in no such emergency of either wartime or terrorism threat to justify a clamp down on free speech by the use of archaic sedition and defamation laws.
Free speech or censorship?
The United States’ Supreme Court has been a leading crusader for free speech over censorship. This has resulted in deep rooted and an entrenched desire for openness and accountability, especially in matters involving government and public interest. The Gambia’s Supreme Court can do the same by using its power of judicial review.
In several landmark cases, the Supreme Court opined, sometimes overrule itself, but unmistakably set a track record of precedent in favor of free speech.
1. Schenck v. United States, 249 U.S. 47 (1919)
Charles Schenck, the Secretary of the Socialist Party in the U.S. mailed 15,000 letters to potential soldiers urging them to refuse military service (the draft), calling it a “monstrous wrong motivated by the capitalist system”.
Mr. Schenck was charged under the Espionage Act for attempting to create insubordination in the military and interfering with recruitment.
The question then before the court is whether Schenck had a First Amendment right to advocate against the military recruitment? That is whether the letters he wrote were protected by the the Free Speech clause of the United States constitution?
The Court’s unanimous decision, written by Justice Oliver W. Holmes Jr. found Mr. Schenck guilty, because according to the Court the First Amendment did not protect speech that encourages insubordination during wartime.
In the Supreme Court’s opinion, Justice Holmes wrote:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger…”
This case, Schenck, then sets the standard for the “clear and present danger” rule similar to what Justice Holmes referred to as “shouting fire in a crowded theater” and causing a panic…
Charles Schenck was sentenced to six months in jail.
2. Whitney v. California, 274 U.S. 357 (1927)
In 1919, Ms. Whitney was convicted of membership, assembling, and helping organize the Communist Labor Party of California. These acts of the defendant, Ms. Whitney, were crimes under California statutes.
The question before the Court was whether the California statute in its application denied Whitney her freedoms of assembly, and speech guaranteed by the 14th Amendment of the United States Constitution?
The Court decided that the Constitutional rights of free speech, assembly, and association did not protect Whitney from punishment by knowingly becoming a member of, assisting and organizing an organization that advocate unlawful acts of violence in order to achieve political change.
However, despite the affirmation of Whitney’s conviction, the Court, nonetheless adopted a less restrictive standard, “bad tendency test”, than the standard set in Schenck earlier.
3. Dennis V. United States, 341 U.S. 494 (1951)
In 1948, the Communist party leaders in the United States were charged, (and convicted) with conspiracy to teach and advocate the overthrow of the United States government in violation of the “Smith Act”.
The Supreme Court, upon certioraris affirmed the convictions of the Communist party leaders.
The Court argued that the “Smith Act” did not necessarily violate free speech, and that the mere teaching of the communist philosophy is not punishable but the active pursuit of those ideas were, because such active pursuit present a “clear and present danger” as laid down by the earlier case in Schenck V. United States.
4. Yates v. United States, 354 U.S. 298 (1957)
In Yates also, leaders of the Communist party in California were convicted under the Smith Act for willfully and knowingly conspiring to advocate the forceful overthrow of the United States government.
In a 6 to 1 decision, the Supreme Court reversed and remanded the case, arguing that in order for the Smith Act to be violated “people must be encouraged to do something, rather than merely to believe in something”. The Court argued that the Smith Act did not make punishable the advocacy of forcible overthrow of government, if it is only an abstract idea and not a concrete action. This was a huge turning point for the triumph of free speech, but the case of Brandenburg, later on, will be even more far reaching.
5. Debs v. United States, 249 U.S. 211 (1919)
Eugene Debs, an American labor leader and presidential candidate for the American Socialist Party, made an anti war speech against U.S. role in World War I. He was arrested, charged and convicted to serve ten years in prison.
The Supreme Court affirmed, citing Schenck as precedent.
However, the Espionage and sedition Acts under which Debs was convicted were repealed in 1921.
6. Brandenburg v. Ohio, 395 U.S. 444 (1969)
Brandenburg was a KKK leader who made an ‘inflammatory’ speech at a Klan rally. He was tried and convicted for advocating “crime, sabotage, violence, or terrorism…”
The court was to address the question whether the Ohio law violated Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments of the United States constitution.
The Court, in its entirety (Per Curiam) decided that the Ohio law violated Brandenburg’s rights and the constitution by being too broad and over-reaching and therefore reversed his conviction.
The Court argued that:
(a) Speech can be prohibited if it aims at inciting “imminent lawless action”, and
(b) If it is likely to incite or produce lawless action.
The Court opined that the Ohio law prohibited the advocacy of industrial and political doctrines without exception to whether such advocacy would incite “imminent lawless action”.
In Brandenburg, the “imminent lawless action” test was established to distinguish protected speech from prohibited speech. In Brandenburg, the Court held that “government cannot punish inflammatory speech unless it is aimed at inciting or likely to incite imminent lawless action”.
Michael Moore’s documentary, ‘Fahrenheit 911’ and Laura Berg’s (the VA nurse) letter to the New Mexico newspaper, both highly critical of George Bush for the Iraq war and the Hurricane Katrina respectively are indicative of the power of free speech in the United States.
The standard set in Brandenburg is still upheld, and has not been challenged since 1969.
The GPU statement cannot be said to incite or likely to incite imminent lawless action. The actions of the GPU seven are justified and protected speech because they did so in good faith and in public interest. They had no knowledge that their actions were defamatory, and above all Jammeh and the government of the Gambia have been implicated in many other infamous incidents that further defamation is impossible.
Conclusion:
While the cases examined here may not be applicable in the Gambia, free speech is universally recognized, and there is a world-wide trend to decriminalize speech, especially when it concerns public figures and public matters.
Therefore, the Gambian courts should acquit the ‘GPU Seven’ defendants, and thereby set a new standard for free speech in the Gambia. That will be a triumph not only for free speech and democracy, but also triumph for the Gambian judiciary which has long been subjugated by the executive branch and its allied foreign judges…
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Posted - 04 Aug 2009 : 12:55:17
